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Court of AppealStruck OutCivil Appli 143 of 2006· [2006] KECA 115 (KLR)

Daniel Chebutuk Rotich & Another v Emirates Airlines [2006] KECA 115 (KLR)

Court of Appeal of Kenya
29 September 2006
458 words in judgment
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The bottom line

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The Court of Appeal struck out Emirates Airlines' appeal because it filed court documents late, confirming that strict 30-day deadlines in Kenyan appeals really matter.

What this practically means

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Executive summary

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This Court of Appeal ruling at Nakuru, delivered on 29 September 2006 by Tunoi, Bosire and Githinji JJA, disposed of a motion by Daniel Chebutuk Rotich and the minor M K C (styled Applicants in the motion and respondents to the intended appeal) to strike out a record of appeal filed by Emirates Airlines (styled Respondent in the motion but the intended appellant) on 7 April 2006 on the ground that it was lodged out of time. The applicants had obtained judgment against the airline in Nakuru High Court Civil Case No. 368 of 2001 (Musinga, J.) on 27 April 2005. Emirates filed a notice of appeal on 5 May 2005 but, although rule 81 required the record of appeal to be lodged within 60 days, it did not file the record until 7 April 2006. It sought refuge in the proviso to rule 81, which saves a late record only where the party has requested copies of the proceedings in writing within 30 days of the decision. The court found that Emirates did not request copies until 29 August 2005, far outside that window. A Certificate of Delay suggesting the bespeaking letter had been filed within 30 days was rejected as false on the face of the record, judgment having been delivered on 27 April 2005. The record of appeal was therefore out of time, rendering Civil Appeal No. 76 incompetent. The court struck out the appeal with costs and awarded the applicants the costs of the application; the High Court judgment was left undisturbed. The ruling binds lower courts to strict compliance with the 30-day bespeaking requirement and confirms that a Certificate of Delay contradicted by the record cannot cure an out-of-time appeal.

Key legal issues

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01

Whether the proviso to rule 81 availed the respondent where it requested copies of the proceedings more than 30 days after the decision.

Holding

No. The proviso saves an otherwise late record of appeal only where the party has requested copies of the proceedings in writing within 30 days of the decision appealed against. The respondent requested copies on 29th August 2005, long after the 30-day period following the 27th April 2005 judgment, so the proviso did not apply.

Reasoning

Rule 81 required the respondent to lodge its record of appeal within 60 days of the decision. The only gateway to relief from that deadline is the proviso, triggered exclusively by a written request for copies of proceedings within 30 days of the decision. The respondent's request of 29th August 2005 fell far outside that window, so the stipulated period expired unextended and the record filed on 7th April 2006 was out of time.

p. 1
02

Whether the Certificate of Delay on record could be relied upon to show that the proceedings were bespoken in time.

Holding

No. The certificate stated that the letter bespeaking copies of proceedings was filed within 30 days, but the judgment was delivered on 27th April 2005 and the request was made on 29th August 2005. The certificate was therefore false and could not be relied upon.

Reasoning

The court tested the certificate against the undisputed primary dates on the record: delivery of judgment on 27th April 2005 and the respondent's request for copies on 29th August 2005. Because those dates made the certificate's assertion of a timely bespeaking letter impossible, the court rejected the document outright, holding that a certificate contradicted by the record cannot establish the competency of an appeal.

p. 2
03

What is the consequence of lodging a record of appeal out of time without the benefit of the proviso to rule 81?

Holding

The record of appeal was filed out of time, which rendered Civil Appeal No. 76 incompetent, and an incompetent appeal must be struck out; the court struck out the appeal with costs.

Reasoning

Timeliness of the record of appeal is a condition of a competent appeal. Once the proviso to rule 81 was found unavailable and the Certificate of Delay rejected, the filing on 7th April 2006 stood unexcused beyond the stipulated period. The court drew the consequence that the intended appeal was incompetent and exercised its power to strike it out, awarding the costs of both the appeal and the application to the applicants.

p. 2

Legal principles established

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  • A party relying on the proviso to rule 81 of the Court of Appeal Rules to excuse a late record of appeal must have requested copies of the proceedings in writing within 30 days of the decision appealed against; otherwise the proviso does not avail.
  • A Certificate of Delay which misstates that copies of proceedings were bespoken within 30 days, where the record shows the request was made outside that period, is false and cannot be relied upon.
  • A record of appeal lodged outside the period prescribed by rule 81, without the benefit of the proviso, renders the appeal incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal (Civil Appeal No. 76) is ordered struck out with costs.
  2. 2.The costs of the application are awarded to the applicants.
On appeal from
High Court of Kenya at Nakuru
H.C.C.C No. 368 of 2001
Jurisdiction invoked
The Court of Appeal's appellate jurisdiction under the Court of Appeal Rules; the motion attacked the competency of the record of appeal under the proviso to rule 81 governing the time for lodging the record and bespeaking copies of proceedings. No constitutional provision was invoked.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Chebutuk Rotich & Another v Emirates Airlines [2006] KECA 115 (KLR)", Case Analysis (2006). Civil Appli 143 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/115/eng@2006-09-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.